News Release ~ 02/26/2009

Heritage, NACDL Again Opposing More Bad Federal Legislation

Washington, DC­ (February 26, 2009) – The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) today released a joint letter to the Senate Judiciary Committee opposing the Public Corruption Prosecution Improvements Act (S. 49) as an unnecessary expansion of federal criminal law.

Although the two organizations are, as they note in their letter, often “on opposite ends of the liberal-to-conservative spectrum,” the two organizations agree that federal prosecutors already have all the tools they need (and far more) to prosecute public corruption.

The proposed legislation is redundant and unnecessary, and many of its provisions are vague and overreaching, according to the organizations’ analysis. For example, the federal courts’ expansive interpretation of the federal mail fraud statute over the years has already made it possible for the government to attack a remarkable range of criminal activity, even though some of the underlying wrongdoing has fallen outside traditional notions of fraud.

Even if some egregious conduct appears to be beyond the jurisdiction of the federal courts – a hypothetical Heritage and NACDL call “unlikely” – such conduct can almost always be prosecuted or corrected at the state or local level. “Indeed, where the allegedly corrupt conduct directly affects constituents of a state or local public official . . . the case is strong for state and local investigation and prosecution,” the organizations said.

Additionally, expansion of the federal “illegal gratuity statute” from gifts given “for or because of any official act” to receipt of any gift merely “because of” the recipient’s public office could lead to absurd prosecutions. The U.S. Supreme Court has already rejected such a broad interpretation of the statute, recognizing that such a reading of the law would criminalize such gifts as replica sports jerseys give to the President by a championship team, or even a baseball cap given to the Secretary of Education by a high school principle as a souvenir of an official visit.

Just two weeks ago, Heritage and NACDL sent a similar letter Leahy and Specter criticizing the Fraud Enforcement and Recovery Act of 2009 (S. 386).

Copies of both letters can be downloaded from NACDL’s legislative testimony page at http://www.nacdl.org/public.nsf/freeform/Testimony?OpenDocument

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.